Opinion
F061611 Super. Ct. No. JJD064578
08-17-2011
In re STEVEN S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. STEVEN S., Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone and Valeriano Saucedo, Judges.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
It was alleged in a juvenile wardship petition filed in March 2010 that appellant, Steven S., a minor, committed attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664; count 1), disturbing the peace (§ 415; count 2) and possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b); count 3). In April 2010, the court, following a jurisdiction hearing, found these allegations true, and in June 2010, the court adjudged appellant a ward of the court.
Except as otherwise indicated, all statutory references are to the Penal Code.
We refer to the wardship proceeding described in this paragraph as the first proceeding.
In November 2010, appellant admitted an allegation set forth in another wardship petition that he resisted, delayed or obstructed a peace officer (§ 148, subd. (a)(1)), and in December 2010, following the disposition hearing, the court continued appellant as a ward of the court; declared appellant's maximum term of physical confinement, based on the instant offense and the offenses adjudicated in the first proceeding, to be three years five months, less 68 days for time served; and ordered that appellant serve 365 days in the Tulare County youth facility. In January 2011 appellant filed a notice of appeal.
On appeal, appellant argues that (1) the March 2010 petition incorrectly stated that attempted second degree robbery is a violent felony within the meaning of section 667.5, subdivision (c) (section 667.5(c)) and must be corrected; and (2) the court's finding in the first proceeding that the allegations of the petition were true includes the implicit finding that the March 2010 petition's erroneous characterization of attempted second degree robbery as a violent felony was correct, and the disposition order in the instant case "perpetuated" this error. We will dismiss the appeal.
RELEVANT PROCEDURAL BACKGROUND
The March 2010 petition, immediately below the allegation that appellant committed attempted second degree robbery, states: "'NOTICE: The above offense is a serious felony within the meaning of Penal Code section 1192.7(c) and a violent felony within the meaning of Penal Code 667.5(c).'"
DISCUSSION
As indicated above, appellant makes two arguments, both premised on the point, which is not in dispute and with which we agree, that the "'NOTICE'" in the wardship petition quoted in the preceding paragraph is incorrect in stating that attempted second degree robbery is a violent felony within the meaning of section 667.5(c). Appellant's first argument focuses on the petition. Framing the issue as "whether a petition may state a false legal fact and then remain uncorrected throughout the jurisdictional, dispositional and appellate process" he argues that the "annotation" in the petition that attempted second degree robbery is a violent felony under section 667.5(c) is incorrect and "may have adverse—and unjustified—consequences in the future," and therefore the petition "must be corrected to reflect that attempted second degree robbery is not a violent offense and that the true finding does not imply that it is." This contention is not properly before us.
"[T]he scope of a party's right to appeal is completely a creature of statute." (In re Daniel K. (1998) 61 Cal.App.4th 661, 666.) "[An appellate court lacks] authority to hear an appeal in the absence of appellate jurisdiction. [Citation.] The right to appeal is statutory and a judgment or order is not appealable unless expressly made so by statute. [Citations.] The orders and judgments in juvenile delinquency matters which are appealable are restricted to those set forth in Welfare and Institutions Code section 800." (In re Almalik S. (1998) 68 Cal.App.4th 851, 854.)
Welfare and Institutions Code section 800, subdivision (a), provides, in relevant part: "A judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment."
"In general, a 'judgment' is 'the final determination of the rights of the parties in an action or proceeding.' (Code Civ. Proc., § 577.) More specifically, the 'judgment' in a juvenile court proceeding is the order made after the trial court has found facts establishing juvenile court jurisdiction and has conducted a hearing into the proper disposition to be made. (Welf. & Inst. Code, §§ 725 ['After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows ....'], 706 [contemplating that, after jurisdictional finding, court shall consider relevant evidence and render 'judgment and order of disposition']; [Citations]." (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307-1308 (Mario C.).) Thus, in juvenile wardship proceedings, the disposition order is an appealable order and a juvenile court's jurisdictional findings can be reviewed in an appeal from a disposition. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709-710, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 33-34; In re Melvin S. (1976) 59 Cal.App.3d 898, 900.)
The erroneous statement in the March 2010 petition—that attempted second degree robbery is a section 667.5(c) violent felony—is not a disposition order or, indeed, an order or judgment of any kind. And as demonstrated above, our appellate jurisdiction in wardship proceedings is limited to review of the "judgment" (Welf. & Inst. Code, § 800), and, specifically, to review of the disposition order. Therefore, this court lacks jurisdiction to address an appellate challenge to an erroneous statement in a wardship petition.
Appellant's second argument focuses on the juvenile court's jurisdictional finding in the first proceeding, i.e., the finding that the allegations of the petition were true and therefore appellant was a person coming within the jurisdiction of the court (Welf. & Inst. Code, § 602). He suggests that the court's finding that the allegations of the March 2010 petition were true includes an implicit finding that the incorrect characterization of attempted second degree robbery as a section 667.5(c) violent felony in the "'NOTICE'" in the petition was also true. Further, he argues, the instant disposition order "perpetuated" this erroneous finding. These claims also are not cognizable on appeal.
As a preliminary matter, we note that the major premise of these contentions—the claim that the court's finding that the allegations of the petition are true implies a finding that matters stated in the "'NOTICE'" are also true—is false. Whether an alleged offense is a serious felony (§ 1192.7, subd. (c)) or a violent felony (§ 667.5(c)) is irrelevant to the issue before the court at the jurisdiction hearing, viz., whether the minor comes under the jurisdiction of the juvenile court because he committed one or more of the alleged offenses (Welf. & Inst. Code, § 602). That the petitioner included in the petition a "'NOTICE'" that informed the minor—albeit incorrectly in this case—that one of the alleged offenses was a violent felony does not transform that notice into an allegation of the petition and does not establish that the court implicitly found true the matters stated in that notice.
But even if, and we assume for the sake of argument, the court's finding in the first proceeding that appellant is a person coming within the jurisdiction of the juvenile court includes an implied finding that the count 1 offense is a violent felony, appellant's challenge to that implied finding would not be cognizable on appeal. As indicated above, a minor can challenge the court's jurisdictional findings in an appeal from the disposition. However, the notice of appeal in a wardship proceeding must be filed within 60 days after the juvenile court issues an appealable order. (Cal. Rules of Court, rule 8.406(a)(1).) Therefore, in order to challenge findings contained in a jurisdiction order, a minor must file a notice of appeal within 60 days after the disposition order. Moreover, "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.'" (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) "If a party fails to appeal an appealable order within the prescribed time, [the reviewing] court is without jurisdiction to review that order on a subsequent appeal." (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; accord, Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953).
Here, the record contains no indication that appellant filed a notice of appeal within 60 days of the disposition order in the first proceeding, and the notice of appeal in the instant case, filed January 3, 2011, is, of course, untimely with respect to the first proceeding. Therefore, this court lacks jurisdiction to address appellant's claim of error arising out of the first proceeding.
Appellant suggests that he may challenge an implicit finding by the juvenile court that the count 1 offense in the first proceeding is a violent felony because the erroneous finding "is an obvious legal error and reviewable regardless of whether an objection or argument was raised in the trial court." He bases this argument on People v. Smith (2001) 24 Cal.4th 849 (Smith).
In that case, our Supreme Court acknowledged that "[a]s a general rule, only 'claims properly raised and preserved by the parties are reviewable on appeal,'" but noted that in previous cases, in "creat[ing] a narrow exception to the waiver rule for '"unauthorized sentences" or sentences entered in "excess of jurisdiction,"''' it had held "appellant intervention appropriate," notwithstanding a failure to object to the error in the trial court, because "in [those] cases ... the errors presented 'pure questions of law' [citation] and were '"clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Smith, supra, 24 Cal.4th at p. 852.) The Smith court held: "Because the erroneous imposition of a [mandatory parole revocation fine (§ 1202.45)] presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings. Accordingly, an invalid parole revocation fine falls within the narrow class of sentencing errors exempt from the waiver rule." (Id. at p. 853.)
Smith is inapposite. The erroneous imposition of the parole revocation fine in that case occurred in the trial court in the case being appealed. Unlike the instant case, the error at issue in Smith did not occur in a previous case from which no appeal was taken and for which the time to appeal had expired. Although Smith held that "the waiver rule" is subject to an exception for "obvious and correctable legal error" (Smith, supra, 24 Cal.4th at p. 853), nothing in that case suggests that there is a similar exception to the rule that if a party fails to appeal an appealable order within the prescribed time, a reviewing court is without jurisdiction to review that order on a subsequent appeal.
Appellant also suggests he is not precluded from challenging in the instant appeal an erroneous finding in the first proceeding that attempted second degree robbery is a violent felony because "The juvenile court was without fundamental jurisdiction to declare, expressly or implicitly, that attempted robbery is a violent felony," and acts in excess of a court's fundamental jurisdiction "may be corrected at any time." (Italics added.) This contention, too, is without merit.
We recognize, as appellant points out, that "'When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void and "thus vulnerable to direct or collateral attack at any time." [Citation.]'" (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1422 (Ramirez).)"'"Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.]'" (Ibid.)
However, "Our Supreme Court has explained that 'jurisdictional errors are of two types."' (Ramirez, supra, 159 Cal.App.4th at p. 1422.) "The term 'lack of jurisdiction' may also be applied when the court possesses jurisdiction over the subject matter and parties in the fundamental sense but '"has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." [Citation.]'" (Ibid.) "[W]hen a court has fundamental jurisdiction to act but acts in excess of jurisdiction, its actions are merely voidable, '[t]hat is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by "principles of estoppel, disfavor of collateral attack or res judicata." [Citation.]' [Citation.] Whereas a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted. [Citation.]" (Ibid.)
At no time in either the first proceeding or the instant proceeding did the juvenile court operate under "an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." (Ramirez, supra, 159 Cal.App.4th at p. 1422.) Any finding by the court that the count 1 offense in the first proceeding was a violent felony was, at most, an act in excess of the court's jurisdiction. Therefore, appellant, by his failure to challenge the juvenile court's finding that that offense was a violent felony in a timely manner, has forfeited that challenge.
In sum, neither the petition nor any finding by the court in the first proceeding that appellant stands adjudicated of a violent felony constitutes an appealable order. Therefore, the instant appeal must be dismissed. (Mario C., supra, 124 Cal.App.4th at p. 1307.)
We note that even if appellant's arguments were cognizable on appeal, we would find them nonmeritorious. In this regard, we find instructive In re Ali A. (2006) 139 Cal.App.4th 569 (Ali A.).
In that case, the juvenile court adjudged the minor a ward of the court and ordered him committed to the custody of his parents. At the disposition hearing the court stated that "'[t]he maximum confinement term is three years.'" (AliA., supra, 139 Cal.App.4th at p. 572, fn. omitted.) On appeal, appellant argued that the court "failed to exercise its discretion in setting the maximum term of physical confinement" pursuant to Welfare and Institutions Code section 731, subdivision (b), which provided at the time of the minor's adjudication that when a minor is committed to the California Youth Authority (CYA), the court has the discretion, within certain limits, "'to set a maximum term of physical confinement, based on the facts and circumstances of the case (Ali A., supra, at p. 572.)
The court of appeal rejected appellant's argument on the basis that Welfare and Institutions Code section 731, subdivision (b) did not apply because by its express terms the statute applied only when a minor was committed to CYA, and appellant was instead committed to the custody of his parents. Moreover, in the portion of the opinion relevant to the instant case, the court stated the following: Because the juvenile court was not required to set an MTPC, "the maximum term of confinement included in the dispositional order [was] of no legal effect." (Ali A., supra, 139 Cal.App.4th at p. 571, italics added.) The court concluded there was "no basis for reversal or remand," notwithstanding the court's unauthorized declaration of the MTPC, because the minor "[was] not prejudiced by the presence of [the] term" declared by the juvenile court. (Id. at p. 574.) The court explained: "The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect." (Id. at p. 574, fn. 2.)
Just as the juvenile court in Ali A. was not required to set an MTPC, the juvenile court in the first proceeding here, as indicated above, was not required to make a finding as to whether any offense was a serious or violent felony. Thus, as in Ali A., the juvenile court's finding—assuming that the court's jurisdiction order can be interpreted as including such a finding—that attempted second degree robbery is a violent felony, incorrect though it is, has no legal effect. And also as in Ali A., we find no prejudice. We trust that because we have made it clear in this opinion that (1) the notice in the March 2010 petition designating one of appellant's offenses as a violent felony is incorrect and that (2) the juvenile court's finding that the allegations of the petition are true do not constitute an endorsement of this error, appellant will not be prejudiced by the erroneous "annotation" in the March 2010 petition.
Respondent argues that appellant's notice of appeal was deficient. We need not address this contention.
DISPOSITION
The appeal is dismissed.